September 04, 2014

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Despite a series of court rulings upholding Indiana’s right-to-work law, unions are not stopping their efforts to have the law overturned. Some opponents are considering petitioning for a review by the Supreme Court of the United States as well as filing another lawsuit in Indiana state court.

Dale Pierson, general counsel for the International Union of Operating Engineers Local 150 who argued Sweeney v. Pence in federal court and Zoeller v. Sweeney in state court, said the opposition has suffered a setback.

“It’s discouraging and of course it’s frustrating,” Pierson said of the recent rulings. “We’re disappointed in decisions by the courts. At the same time, we understand it is going to be an uphill battle.”

The bruising fight over Indiana’s right-to-work law shifted to the courts shortly after then-Gov. Mitch Daniels signed the legislation in February 2012. And by mid-2014, the law appeared to be vulnerable.

When Lake Circuit Special Judge George Paras struck down right-to-work in July 2014 as violating the Indiana Constitution, Lake Superior Judge John Sedia had already made a similar ruling in September 2013. Also, IUOE Local 150 was feeling confident about the arguments it presented in its appeal of Sweeney, et al. v. Pence, et al., 13-1264, to the 7th Circuit Court of Appeals.

After the United Steel case was resolved, Indiana Attorney General Greg Zoeller said the law, which prevents the collection of dues from those workers who choose not to join the union, can continue to be enforced.

“The Indiana Supreme Court has conclusively answered that the statute prohibiting involuntary union dues is constitutional,” Zoeller said. “It is my hope that people of good will with sincerely held different opinions about this statute will respect the Supreme Court’s ruling.”

Schererville attorney James Wieser, who helped represent the union in United Steel, agreed with the attorney general.

“Certainly, this is the law of the land. It is the law of Indiana,” Wieser said. “It has been upheld and found to be constitutional.”

A dissent

Pierson is not ready to concede right-to-work is the law of the land yet.

In particular, he pointed to IUOE Local 150’s petition for an en banc review by the 7th Circuit. Chief Judge Diane Wood’s strong dissent in Sweeney v. Pence convinced the union to pursue a hearing by the entire court.

Since filing the petition, the court’s actions have created more highs and lows for the union. According to Pierson, court observers initially thought the 7th Circuit was leaning toward a full review when it asked Zoeller’s office for an answer to the en banc petition. But now that the court has taken no action since Zoeller’s answer was submitted more than a month ago, some say this indicates the court could not get the votes to grant the union’s request.

Still, Pierson said Wood’s dissent might push the U.S. Supreme Court to add the case to its docket. The Circuit courts that have reviewed right-to-work laws have upheld them, but a dissent in an appellate ruling is unusual and might peak the interest of the nine justices.

IUOE Local 150 argued Indiana’s labor law was preempted by federal legislation. Specifically, the union asserted the state prohibition on the collection of any fees and dues from nonmembers violated a federal provision which allows unions to charge these nonmembers their “fair share” of the collective bargaining costs.

In her dissent, Wood agreed with the preemption arguments. She contended the majority misunderstood federal law and, in turn, had “given a green light” to Indiana taking private property, here the services of the union, without just compensation.

Applied challenge

From the Indiana Supreme Court, a concurring opinion by Justice Robert Rucker has opened another avenue to challenge the law, Pierson said. Rucker hinted in Zoeller v. Sweeney that while a facial constitutional challenge to the law must fail, an applied challenge to the statute might bring a different result.

Pierson believed United Steel presented the case that Indiana’s right-to-work law is unconstitutional when it is put into practice. Although the Supreme Court did not agree this time, Pierson thinks another lawsuit could be filed if a union can show it has suffered revenue losses or it is unable to represent the workers because the nonmembers are not paying their fair share.

Wieser, partner at Wieser & Wyllie LLP, still considers the arguments United Steel made were good. The union maintained the right-to-work statute violated the state Constitution’s ban on the government demanding “particular services” without just compensation.

The argument was similar to that made in Zoeller v. Sweeney and when the Supreme Court still upheld the law, Wieser figured United Steel would face the same fate. After reviewing Justice Brent Dickson’s opinion, Wieser said the legal team felt the decision was comprehensive enough that it resolved the issues in their litigation. Consequently, the union joined the state in the motion to dismiss because carrying the case any further would have been futile, he said.

“We’re disappointed. We did really think we had a very viable case,” he said. “But we understand the decision, we respect the decision, and we’ll certainly live by it.”•

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Marilyn Odendahl covers the Indiana General Assembly as well as law schools and bar associations across the state for the Indiana Lawyer. Prior to joining the Indiana Lawyer, she was a reporter for nearly eight years at The Elkhart Truth, in Elkhart, Ind., where she primarily covered business. She holds degrees from Ball State University and the University of Louisville.